The Hazard Often Overlooked
A person accused of possessing child pornography usually focuses their attention on the possible criminal penalties. That makes sense because those penalties, especially in federal court, can be severe–even draconian.
But there’s another serious consequence of possessing child pornography that the accused usually overlook: money penalties that can be collected by the children depicted in the pornographic images. It’s a consequence we at the Marshall Defense Firm have learned never to overlook.
Civil Damages vs. Criminal Restitution
Like most criminal offenders, persons convicted of possessing child pornography can be ordered to pay criminal restitution to victims of their crimes. This usually comes as a part of criminal sentencing. In Washington State, criminal restitution is usually limited to easy-to-determine costs; for example, a victim’s counseling bills can be a part of it, but a dollar amount representing a victim’s “pain and suffering” cannot. This helps to keep criminal restitution orders manageable for most middle-class and upper-class defendants.
Civil damages, collected through tort law, for possessing child pornography are a much greater financial threat. Victims can collect them in federal court under a law Congress enacted in 2006. The law is intended to compensate persons who suffered sexual exploitation while they were children.
A defendant who has been ordered to pay criminal restitution to a person depicted in child pornography may believe he has resolved all legal problems arising from his acts. But collecting criminal restitution does not block a victim from suing the same defendant for civil damages.
There is generally, though, no double recovery. When a defendant pays criminal restitution to a person depicted in child pornography, those payments are usually a credit against any civil damages the defendant is required to pay that person. In other words, the defendant will probably not have to pay civil damages plus criminal restitution to the same victim.
The Risk of Financial Ruin
Suits under this federal law can easily ruin a person financially.
In most civil lawsuits, the person suing must prove how much she has been damaged, either in “special damages” (doctor bills, lost wages, and other money losses easy to ascertain) or in “general damages” (things like pain and suffering for which jurors award the dollar values they think provide fair compensation).
It doesn’t work like that under the 2006 law for compensating victims of child pornography. Instead, every such victim is “deemed to have sustained damages of no less than $150,000 in value.” In other words, each victim will win $150,000 at trial simply by proving the accused possessed a pornographic image of her or him as a child. In most seizures of child pornography, images of more than one victim are collected. At $150,000 per victim, it is easy for a defendant’s liability to climb past a million dollars.
How Persons Depicted in Child Pornography Learn that a Criminal Defendant had an Image of Them and can be Sued
The National Center for Missing and Exploited Children serves as the central repository for information related to child victims depicted in sexually exploitive images. Once a particular victim has been identified in an image of child pornography, they are notified by the Child Pornography Victim Assistance Office every time their image is possessed by a person charged with violating child pornography laws.
While there is no requirement that the person being sued has been prosecuted, these types of suits typically arise after a victim has been notified that a particular criminal defendant was in possession of images of them and that a conviction has been obtained.
What can One Do?
Persons who learn they may be successfully sued for huge amounts of money are often tempted to move their assets to a safe place. Any such transfer of assets, though, can be deemed a fraudulent transfer and later voided. But the law does exempt certain property from collection by judgment creditors and a person facing a large money claim needs to know how to avoid unintentionally increasing his property subject to collection. In such a situation, legal advice on asset protection is an excellent investment.
A person also needs an attorney to search for defenses against the claim (including whether the claim is barred under the statute of limitations) and to explore a compromise of the claim. The attorney also needs to be ready to try the case vigorously and skillfully if a satisfactory compromise cannot be reached.
This area of the law is new and rapidly evolving. Victims of child pornography have attorneys who are skilled in litigating this kind of civil suit. With financial ruin looming, defendants need skilled attorneys, too.
What it’s Like to Have The Marshall Defense Firm in Your Corner
Respect and compassion are the foundation of our work. We take time to get to know you and your case. It’s where our fierce advocacy for you begins.
Then there’s our experience. For decades we have defended special-assault cases like civil claims for possession of child pornography. From that and our on-going study of the law, medicine, and psychology involved in these cases, we have exceptional skill.
And we pool that skill. We work as a team. We know that no one lawyer, no matter how brilliant, will have all the good ideas for your case.
Our final ingredient is relentless investigation and preparation. When we step into court to defend you, we are ready to do it well.